Biography

Gabriella Blum is the Rita E. Hauser Professor of Human Rights and Humanitarian Law at Harvard Law School, specializing in public international law, international negotiations, the law of armed conflict, and counterterrorism. She is also the Faculty Director of the Program on International Law and Armed Conflict (PILAC) and a member of the Program on Negotiation Executive Board.

Prior to joining the Harvard faculty in the fall of 2005, Blum served for seven years as a Senior Legal Advisor in the International Law Department of the Military Advocate General’s Corps in the Israel Defense Forces, and for another year, as a Strategy Advisor to the Israeli National Security Council.

Blum is a graduate of Tel-Aviv University (LL.B. (’95), B.A. (Economics) (’97)) and of Harvard Law School (LL.M. (’01) and SJD (’03)).

Blum is the author of Islands of Agreement: Managing Enduring Armed Rivalries, (Harvard University Press, 2007), Laws, Outlaws, and Terrorists (MIT Press, 2010) (co-authored with Philip Heymann and recipient of the Roy C. Palmer Civil Liberties Prize), and of The Future of Violence: Robots and Germs, Hackers and Drones - Confronting a New Age of Threat (Basic Books, 2015) (co-authored with Benjamin Wittes and recipient of the Roy C. Palmer Civil Liberties Prize) as well as of journal articles in the fields of public international law and the law and morality of war.

Areas of Interest

National Security Law: Counter-Terrorism

Dispute Resolution: Conflict Management

International Law: Laws of Armed Conflict

International Law: Public International Law

Dispute Resolution: Negotiation

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Benjamin Wittes & Gabriella Blum, The Future of Violence: Robots and Germs, Hackers and Drones - Confronting a New Age of Threat (Basic Books 2015).

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Abstract

"The ability to inflict pain and suffering on large groups of people is no longer limited to the nation-state. New technologies are putting enormous power into the hands of individuals across the world--a shift that, for all its sunny possibilities, entails enormous risk for all of us, and may even challenge the principles on which the modern nation state is founded. In short, if our national governments can no longer protect us from harm, they will lose their legitimacy. Detailing the challenges that states face in this new world, legal scholars Benjamin Wittes and Gabriella Blum controversially argue in this work that national governments must expand their security efforts to protect the lives and liberty of their citizens. Wittes and Blum show how advances in cybertechnology, biotechnology, and robotics mean that more people than ever before have access to technologies--from drones to computer networks and biological data--that could possibly be used to extort or attack states and private citizens. Security, too, is no longer only under governmental purview, as private companies or organizations control many of these technologies: internet service providers in the case of cyber terrorism and digital crime, or academic institutions and individual researchers and publishers in the case of potentially harmful biotechnologies. As Wittes and Blum show, these changes could undermine the social contract that binds citizens to their governments." (From the Publisher)

Why are all soldiers fair game in war? This paper challenges the status-based distinction of the laws of war, calling instead for revised targeting doctrines that would place further limits on the killing of enemy soldiers. I argue that the changing nature of wars and militaries casts doubts on the necessity of killing all enemy combatants indiscriminately.
I offer two amendments: The first is a reinterpretation of the principle of distinction, suggesting that the status-based classification be complemented by a test of threat. Consequently, combatants who pose no real threat would be spared from direct attack. The second is a reinterpretation of the principle of military necessity, introducing a least-harmful-means test, under which an alternative of capture or disabling of the enemy would be preferred to killing whenever feasible.
I discuss the practical and normative implications of adopting these amendments, suggesting possible legal strategies of bringing them about.

This book demonstrates that peace and war are seldom polar totalities but increasingly can and do coexist within the confines of a single scenario. It suggests that even where conflict exists, we regard it as only one dimension of an ongoing, multifaceted interstate relationship. The result is a shift in perspective away from the constricting notions of "prevention" or "resolution" toward a more holistic approach of relationship management. This approach is especially pertinent because conflicts cannot always be prevented or resolved. Through case studies of long-enduring rivalries--India and Pakistan, Greece and Turkey, Israel and Lebanon--this work shows how international law and politics can function in the battlefield and in everyday life, forming a hybrid international relationship. Through a strategy called "islands of agreement," this book argues that within the most entrenched and bitter struggles, adversaries can carve out limited areas that remain safe or even prosperous amid a tide of war. These havens effectively reduce suffering and loss and allow mutually beneficial exchanges to take place, offering hope for broader accords.

This chapter challenges the status-based distinction of the laws of war, calling instead for revised targeting doctrines that would place further limits on the killing of enemy soldiers. The chapter argues that the changing nature of wars and militaries casts doubts on the necessity of killing all enemy combatants indiscriminately. The chapter proposes two amendments. The first is a reinterpretation of the principle of distinction, suggesting that the status-based classification be complemented by a test of threat. The second is a reinterpretation of the principle of military necessity, introducing a least-harmful-means test, under which, whenever feasible, an alternative of capture or disabling of the enemy would be preferred to killing.

Dustin Lewis, Gabriella Blum & Naz Modirzadeh, Indefinite War: Unsettled International Law on the End of Armed Conflict (Harvard Law Sch. Program on Int'l Law & Armed Conflict, Legal Briefing, Feb. 27, 2017).

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Abstract

Can we say, definitively, when an armed conflict no longer exists under international law? The short, unsatisfying answer is sometimes: it is clear when some conflicts terminate as a matter of international law, but a decisive determination eludes many others. The lack of fully-settled guidance often matters significantly. That is because international law tolerates, for the most part, far less violent harm, devastation, and suppression in situations other than armed conflicts. Thus, certain measures governed by the laws and customs of war — including killing and capturing the enemy, destroying and seizing enemy property, and occupying foreign territory, all on a possibly large scale — would usually constitute grave violations of peacetime law.
This Legal Briefing details the legal considerations and analyzes the implications of that lack of settled guidance. It delves into the myriad (and often-inconsistent) provisions in treaty law, customary law, and relevant jurisprudence that purport to govern the end of war. Alongside the doctrinal analysis, this Briefing considers the changing concept of war and of what constitutes its end; evaluates diverse interests at stake in the continuation or close of conflict; and contextualizes the essentially political work of those who design the law.
In all, this Legal Briefing reveals that international law, as it now stands, provides insufficient guidance to precisely discern the end of many armed conflicts as a factual matter (when has the war ended?), as a normative matter (when should the war end?), and as a legal matter (when does the international-legal framework of armed conflict cease to apply in relation to the war?). The current plurality of legal concepts of armed conflict, the sparsity of IHL provisions that instruct the end of application, and the inconsistency among such provisions thwart uniform regulation and frustrate the formulation of a comprehensive notion of when wars can, should, and do end.
Fleshing out the criteria for the end of war is a considerable challenge. Clearly, many of the problems identified in this Briefing are first and foremost strategic and political. Yet, as part of a broader effort to strengthen international law’s claim to guide behavior in relation to war and protect affected populations, international lawyers must address the current confusion and inconsistencies that so often surround the end of armed conflict.

War used to be a lucrative business. It was waged as a matter of course to expand territory, convert the religion of populations, resolve disputes, collect an unpaid debt, restore property, or punish another sovereign for a treaty violation. This was not only true as a matter of practical statecraft. It was also the accepted ethical prescription of Just War Theory.
The modern jus ad bellum has transformed our view of war: From an instrument of self-interest, enforcement and punishment war has been proclaimed an evil which must be carried out only as a last resort and in self-defense. Yet, in this undoubtedly progressive move, we have also lost something – our ability to articulate the precise goals of the war, and consequently, to determine when the war must end.
When self-defense is the only legitimate justification for waging war, every goal must be articulated in terms of self-defense and self-defense, in turn, becomes articulated through an endless array of goals: installing a democratic government in enemy territory, improving child literacy, empowering girls and women through education, enhancing agricultural production, building infrastructure or eliminating all terrorist threats around the globe. While the question of whether a military campaign is justified as a matter of self-defense is often debated, the question of what goals actually promote self-defense remains largely unaddressed. The problem lies not so much in lack of attention; rather, it is that even where a just cause of self-defense exists, the law is inadequate in giving us sufficient guidance on what and how much counts as a legitimate security interest.
As a result, we can have no consensual vision of what victory can or should look like. Nor do we have a clear metric by which we can argue about it. In a world of perpetual threats, our existing legal framework invites perpetual war.

In this briefing report, we introduce a new concept—war algorithms—
that elevates algorithmically-derived “choices” and “decisions” to a, and
perhaps the, central concern regarding technical autonomy in war. We
thereby aim to shed light on and recast the discussion regarding “autonomous weapon systems.” In introducing this concept, our foundational technological concern is the capability of a constructed system, without further human intervention, to help make and effectuate a “decision” or “choice” of a war algorithm. Distilled, the two core ingredients are an algorithm expressed in computer code and a
suitably capable constructed system. Through that lens, we link international law and related accountability architectures to relevant technologies. We sketch a three-part (non-exhaustive) approach that highlights traditional and unconventional accountability avenues. By not limiting our inquiry only to weapon systems, we take an expansive view, showing how the broad concept of war algorithms might be susceptible to regulation—and how those algorithms might already fit within the existing regulatory system established by international law.

The surge in armed conflicts involving terrorism has brought to the fore the general question of medical care in armed conflict and the particular legal protections afforded to those providing such care to terrorists. Against this backdrop, we evaluate IHL protections for wartime medical assistance concerning terrorists. Through that lens, we expose gaps and weaknesses in IHL. We also examine tensions between IHL and state responses to terrorism more broadly.

We suggest thinking about the beginning and ending of wars as an exercise in risk management. We argue that states, like individual citizens, must accept that some degree of security risk is inevitable when coexisting with others. We offer two principles for the just management of military risk. The first principle is Morally Justified Bearable Risk, which demands that parties at war temper their claims of justice with the realities of an anarchic and conflicted international system. The second principle, Minimum Consistency toward Risk, mandates that states generally not weigh security threats higher than risks from other sources.

This article addresses Frances Kamm's discussion, in Ethics for Enemies, of how intentions should figure in determining whether a nation's act of war is morally permissible. The authors, experts in law rather than moral philosophy, seek to show how certain facets of domestic
and international law might pose challenges to Kamm’s argument. They first consider how domestic law addresses individual
behavioral analogs to the kind of state behavior with which Kamm
is concerned. They then turn to state behavior and the law of war, addressing how the legality of conduct indicates the conduct's moral permissibility.

Gabriella Blum, The Individualization of War: From War to Policing in the Regulation of Armed Conflicts, inLaw and War 48 (Austin Sarat, Lawrence Douglas & Martha Merrill Umphrey eds., 2014).

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Abstract

In a celebrated humanitarian move, wartime regulation has evolved from a predominantly state-oriented set of obligations — which viewed war as an inter-collective effort — to a more individual-focused regime. In fact, the regulation of armed conflict increasingly resembles, at least in aspiration, the regulation of police activities, in which it is the welfare of individuals, rather than the collective interest of the state, that takes center stage.
I demonstrate that many contemporary debates over the laws of war, including the distinction between the jus ad bellum and jus in bello, proportionality, detention of combatants, and reparations for victims implicate exactly the tension between collectivism and individualism in the regulation of armed conflict.
I further argue that notwithstanding the humanitarian benefits of the move to greater concern over the human rights of those affected by war, reimagining war as a policing operation harbors real dangers that must not be overlooked. These include imagining more of policing as war, inhibiting military action for the protection of others, and inviting more aggressive acts “short of war” against targets around the world.

What does victory mean today? How do we know who ‘won’ the war and what does the winner win by winning? This article uses the prism of victory to view the transformation of the goals, means, and targets of war, and assesses the applicability of the conventional Just War doctrine (through the traditional laws of war) to the modern battlefield. Specifically, the article claims that the military and civilian components of war have grown so intertwined in both the conduct and ending of hostilities that the laws of war, with their emphasis on combat, are hard-pressed to offer a normative yardstick for a just modern war.

Should the United States, as the strongest military power in the world, be bound by stricter humanitarian constraints than its weaker adversaries? Would holding the U.S. to higher standards than the Taliban, Iraqi insurgents, or the North Korean army yield an overall greater humanitarian welfare or be otherwise justified on the basis of international justice theories? Or would it instead be an unjustifiable attempt to curb American power, a form of dangerous “lawfare”? The paper offers an analytical framework through which to examine these questions. It draws on the design of international trade and climate agreements, where obligations have been linked to capabilities through the principle of Common-but-Differentiated Responsibilities (CDRs), and inquires whether the justifications that have been offered for CDRs in these other regimes are transposable to the laws of war. More broadly, the framework tests the extent to which war can and should be equated to other phenomena of international relations or whether it is a unique context that resists foreign analogies. Rather than offering a definitive answer, the inquiry illuminates the types of judgments and predictions that one must hold in order to have a position on the desirability of CDRs in international humanitarian law, most notably, the degree to which weaker adversaries will be prone to abusing further constraints on stronger enemies, the expected effects of CDRs on the propensity to go to war, who on the enemy’s side is the “enemy,” and what are the duties that are owed to one’s enemies.

In this book, Blum and Heymann reject the argument that traditional American values embodied in domestic and international law can be ignored in any sustainable effort to keep the United States safe from terrorism. Instead, they demonstrate that the costs are great and the benefits slight from separating security and the rule of law. They argue that the harsh measures employed by the Bush administration were authorized too broadly, resulted in too much harm, and often proved to be counterproductive for security. Although they recognize that a severe terrorist attack might justify changing the balance between law and security, they call for reasoned judgment instead of a wholesale abandonment of American values. They also argue that being open to negotiations and seeking to win the moral support of the communities from which the terrorists emerge are noncoercive strategies that must be included in any future efforts to reduce terrorism. (From the Publisher)

One of the fundamental principles of international humanitarian law (IHL) is that it recognizes no lesser-evil justification for breaking its rules. Those violating the laws of war will thus be viewed as war criminals even when their conduct was intended to—and in fact did—prevent much greater harm. This Article argues that this deep-rooted absolutist stance undermines the humanitarian drive of the laws of war, and offers, instead, a lesser-evil defense.
The argument begins with the obvious analogy to the necessity defense in domestic criminal law, emphasizing the adaptations that are necessary in order to transpose the domestic concept onto the international plane. It then proceeds to test possible first-order accounts—deontological, consequentialist, and institutional—for why IHL might nonetheless prefer a more absolutist stance than domestic law. It finds that none of these accounts offers a compelling explanation for the exclusion of any lesser-evil justification from IHL. The Article then proceeds to develop a blueprint for a humanitarian necessity justification that would exculpate an actor who violated the laws of war in the name of a greater humanitarian good under certain conditions. A central component of the justification, which is required given the special nature of IHL, is a condition that the greater humanitarian good would benefit the enemy, rather than the actor’s own people.
Three case studies are taken up to demonstrate the implications of IHL’s absolutism: the “Early Warning Procedure” employed by the Israeli Defense Force in the West Bank, the paradigmatic case of interrogational torture, and the atomic bombings of Hiroshima and Nagasaki. Under the paradigm of a humanitarian necessity justification suggested here, the Early Warning Procedure and perhaps even the atomic bombing of Hiroshima (but not Nagasaki) might be justified, but the paradigmatic case of interrogational torture cannot.

The 2008 Convention on Cluster Munitions (‘CCM’) gives the first definition of cluster munition in an international treaty. Under Art. 2 (2) CCM, a cluster munition is ‘a conventional munition that is designed to disperse or release explosive submunitions each weighing less than 20 kilograms’. Cluster munitions present a special humanitarian challenge because they are area weapons designed to easily spread over a vast territory, making it more difficult to discriminate among targets and avoid civilian casualties during conflicts.

The term ‘remnants of war’ refers to the residuum left in a territory after the end of an armed conflict. his includes all the remnants associated with the conflict, including objects such as explosive ordnance, depleted uranium, and debris such as barbed wire and ruins. Such objects present a threat to civilians and slow post-war economic recovery. Although these remnants of armed conflict are often the subject of political negotiations, there is as of yet no general international legal regime assigning responsibility for their clearance after a conflict. Nonetheless, there have been some notable developments in addressing the particular dangers posed by explosive remnants of war, primary among which is the the Protocol on Explosive Remnants of War to the 1980 Convention on Certain Conventional Weapons (‘CCW’); (‘Protocol V’).

Gabriella Blum, The Role of the Client: The President's Role in Government Lawyering, 32 B.C. Int'l & Comp. L. Rev. 275 (2009).

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Discussions of whether Bush and Clinton administration lawyers have acted ethically have missed a fundamental point about the attorney-client relationship. It is the client—in this case, the government—who is ultimately responsible for making policy decisions, not the attorney. Too
often, the question of what is “legal” has been substituted for what should
actually be done, especially in the United States, where “legal” and
“desirable” have become so intertwined. Governments should consult with attorneys, but should also be prepared to implement whatever policies they believe are “right,” and if necessary to explain any departures from what is “legal” to the pubic, to whom they are ultimately accountable.

This paper studies the different roles, impact, and operation of bilateral treaties and multilateral treaties as structures within the architecture of international law. I observe that the preference for bilateralism or multilateralism in international lawmaking is often determined not by an informed choice but by an instinctive association of political schools or bureaucratic affiliations with different forms of international regulation. This association, however, is not always founded on a just appreciation of the workings of either form in various contexts or of the way in which the two interact with each other. I set out to offer a framework for such an appreciation and assess the workings of multilateral treaties and bilateral treaties along three dimensions: the contribution of the respective instruments to the advancement of an international rule of law; the operation of the regime in terms of its effectiveness, efficiency, and compliance; and the democratic legitimacy of the making of each regime. I demonstrate that ideologies and values that seem to be almost blindly associated with one type of regulation may be actually better served, in some cases, by using the other type. Ultimately, this paper attempts to chart a course for more theoretical and empirical forays into the questions of why states join particular types of treaties and how these different types of treaties, or a combination of them, promote or obstruct the attainment of various goals within the architecture of international law.

This book pulls together the relevant ideas on negotiation from law, psychology, business, economics, cultural studies and a dozen other fields to provide a context for successful negotiation. The chapter by Mnookin and Blum provides a useful theoretical framework to demonstrate what a party should consider before deciding whether or not to enter into negotiations.

Scott Lasensky, Gabriella Blum, Daniel Shapiro & Howard Raiffa, International Dimensions: What Is the Role of Third Parties?, 21 Negotiation J. 245 (2005).